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Blagojevich might not be so lucky the second time around, says legal expert

Federal prosecutors in complicated white-collar cases that end in mistrials often win convictions the second time around, according to a study by Washington University law professor Kathleen Brickey. Brickey, an expert on white-collar crime, pointed to the study in the wake of the Rod Blagojevich corruption trial that ended in a mistrial on 23 of 24 counts against the former governor and a conviction on the other count of lying to FBI agents.

In a study of eight high-profile cases that ended in mistrials over the past decade -- cases such as Enron, Tyco and Qwest -- Brickey found that "prosecutors have enjoyed considerable success after mistrials were declared. ... Defendants in two cases pled guilty to avoid the perils of a retrial, and in three of the four retrials, the juries convicted all of the remaining defendants. None of the retried defendants has been acquitted."

Brickey found that some of the cases had suffered from confusing complexity during the first trials. Prosecutors were more successful in second trials after simplifying their cases. The 24-count indictment against Blagojevich may have led to a confusingly complex trial that left jurors unable to make clear-cut decisions.

Comments from jurors and legal analysts point to one major reason for the Blagojevich jury's failure to convict on all but one charge: No money had changed hands.

"I'm not surprised that the jury was out so long, and unable to convict on any more than one count," said Stephen B. Higgins, former U.S. attorney in St. Louis who prosecuted white-collar crimes.

"Like most former prosecutors, particularly ones who did public corruption cases, I wondered about the decision to charge the governor with so many counts, but so little (make that 'no') money in anybody's pockets," Higgins wrote in an email.

"While it's true as a matter of law that an attempt, or a conspiracy, to commit a crime is a crime in itself, the guiding principle in most corruption prosecutions is that somebody had to have benefited from the corrupt act. In this case, all the talk may have been a crime, but obviously the jury had a hard time accepting the notion that it was a crime worthy of conviction," added Higgins, now a partner at Thompson Coburn.

The foreman of the jury told the Chicago Tribune that the prosecution failed for "lack of a smoking gun."

Peter Joy, a Washington University law professor, said in a written statement it was that lack of a smoking gun that led to the result. "Juries often have a problem convicting when there isn't clear evidence of a complete crime," he said.

Joy agreed with Brickey's assessment that the prosecutors benefit from a retrial. "Retrials usually help the prosecution more than the defense," Joy said. "First, the prosecutors now know the defense's case and strategy, and they can plan to present the government's case better. Second, the cost of retrying a case hits the defense harder. Blagojevich has to find the money to pay his lawyers for a second trial." Joy is director of the law school's Criminal Justice Clinic.

John Jackson, a political science professor affiliated with the Paul Simon Public Policy Institute at Southern Illinois University Carbondale, said, "There is something to the idea that (U.S. Attorney Patrick) Fitzgerald may have needed to wait until the deal on the U.S. Senate seat was consummated. Then you would have had a quid pro quo. There was a lot of quid pro quo talked about, but the loop was not closed definitively on much of it."

Fitzgerald explained at the time of the Blagojevich indictment that he could not sit by and allow the governor of Illinois to sell the Senate seat of then President-Elect Barack Obama because that would have posed a constitutional crisis. Jurors told reporters after the trial that there was a single hold-out on the charge related to selling the Senate seat.

"If that is true," wrote Jackson in an email, "then the idiosyncratic nature of juries is a partial explanation as well. This is just the price you must pay occasionally for the use of the jury system."

Jackson said he was "all for the U.S. attorney's decision to retry. I think the people of Illinois are genuinely fed up with this whole story, but I think the government has to go back to the well again and seek justice. If they are as smart as I think they are, they will get in their whole case in the opening narrative this time and not hold anything back for the rebuttal to Rod's testimony. The down side to all this is that we will all have to live with the Blago Reality Show for another year. I had hoped it would be canceled yesterday!"

Robert Spellman, a lawyer and former journalism professor at SIUC, is fed up with both Blagojevich and with Fitzgerald, whom he sees as overly zealous.

"I have a deep prejudice against Blagojevich," he wrote in an email, "but I always thought he was politically astute. His stances against new taxes and for government health insurance, etc. -- in combination irresponsible -- seemed to me to have an appeal to his working-class and ethnic base. ... Relying on news accounts of the trial, I would have had a hard time convicting (although not based on the stupidity defense).

"Moreover, I do object to Fitzgerald's zealousness, although common enough among prosecutors these days. Where there is no probability of flight or violent resistance, there is no reason to arrest at 6 a.m., handcuff, and provide a perp walk for the media.

"If I were a rational prosecutor, I would try to trade no retrial for no appeal," said Spellman. "That would put him in jail for three to four years and save millions. I would rate the chances of conviction on retrial at less than 50 percent although Blagojevich's legal representation may be less effective because he is out of money."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

This article originally appeared in the St. Louis Beacon.